15 September 2022 – ELRC960-21/22 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC960-21/22 KZN

In the matter between

Department of Education KZN Employer
And
Werner Botha Employee

ARBITRATOR: R. Shanker

DELIVERED: 12 September 2022

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA), as amended, and was set down for an Enquiry by Arbitrator process on 31 August 2022.
2. The employee, Werner Botha (“Botha”) was legally represented by M.M. Shabangu (“Shabangu”). The employer, Department of Education KZN, was represented by J. Dumisa.
3. On 31 August 2022, Botha and/or his representative was not present. An application for postponement was telephonically heard. For reasons mentioned later, I did not grant a postponement and decided to proceed in default.
4. The matter relates to the sexual harassment of a learner who is a minor. In accordance with the protection of the rights of minors, the identity of the learner will not be disclosed. I will refer to her as “the Learner”. Evidence was given via an intermediary.
ISSUES TO BE DECIDED
5. The issue to be determined is whether Botha committed the misconduct as per the charges set out below and, if so, to recommend an appropriate disciplinary sanction.
Charge 1: In that during the period 2022 at or near Dundee High School, you committed sexual misconduct against a learner in your school. You thereby contravened section 17(1)(b) of the employment of Educators Act.
BACKGROUND TO DISPUTE
6. On 31 August 2022, Shabangu, acting on behalf of Botha, telephonically advised that his client was released on bail but was unable to attend the arbitration process due to the following bail conditions set by the High Court:
6.1. Botha was required to vacate the province of KwaZulu Natal and take up residence in Gauteng until the commencement of the trial. He is to remain at the address in Gauteng 24 hours a day.
6.2. He is not to have any contact of whatever nature with the Learner or the witnesses.
6.3. He was required to hand in his cell phone, laptop and any computer in his possession to the investigating officer.
6.4. Pending his trial, he is prohibited from making use of any social media platforms whatsoever.
7. Shabangu suggested that this matter be heard in October 2022 when Botha will first appear for his trial but he agreed that the same bail conditions would apply and Botha would not be able to participate in the process. He also agreed that there was no fixed date that this matter could be postponed to and that the parties had agreed to this arbitration date prior to the High Court bail hearing.
8. The employer opposed the application for postponement for the following reasons:
8.1. The matter was postponed on two previous occasions. On 06 May 2022, the matter had to be postponed due to notice not being served on Botha at the correctional service. On 28 June 2022, the matter had to be postponed because Botha and his representative had not consulted and prepared for the arbitration.
8.2. The parties had agreed to 31 August 2022 as the date on which this arbitration will proceed. Botha and his representative agreed that they will be ready to proceed.
8.3. Given the allegations against Botha (rape charges), the impact on the Learner was serious.
8.4. The costs for the employer would be significant especially if Botha had to be paid until the criminal case was finalised.
9. I considered the submissions of the parties and did not grant the application for postponement for the following reason:
9.1. There was no definite date in the near future to which this matter could be postponed and it would be unreasonable to postpone the matter pending the finalisation of the criminal case.
9.2. Botha and his representative were aware of and had agreed to the date of this arbitration well before Botha’s bail hearing and, if they were serious about presenting their version at this arbitration process, they should have addressed this issue with the Court during the bail hearing. Further, Botha’s representative only advised me of the bail conditions and that they will not be able to attend the arbitration when I phoned him to establish the reason for their non-attendance.
9.3. Botha is alleged to have raped the Learner, a minor, at school. The emotional and psychological impact on the learner would be serious and warrants a speedy resolution of this case.
9.4. There would also be a significant financial impact on the employer should the matter be postponed indefinitely.
9.5. The prejudice on the employer and the Learner outweighs the prejudice on Botha. His representative was however advised that I would consider an application to rescind my default award should Botha obtain permission from the Court to testify at this arbitration process within a reasonable period.
10. At this hearing, the employer called the Learner to testify.
SURVEY OF EVIDENCE AND ARGUMENT
11. The Learner testified that Botha was a teacher at her school but did not teach her any of her subjects. She was 14 years old and in grade 9. Botha was friendly, open and they had good relations.
12. On 18 February 2022, she was writing Art examinations. She had a break and went to Botha’s class to complete her assignment and maths homework. When she got there, she and Botha were talking and laughing about her previous subject, technology. She then finished her maths homework.
13. She had a maths assignment for the following week. Botha told her that there was a textbook in the storeroom and that when she was done, she should meet him in the storeroom. She packed her bag and then went to the storeroom. She entered the storeroom, went past Botha and started to look for the textbook. She was familiar with the storeroom and found the textbook. She found the door locked when she was leaving the storeroom.
14. She didn’t want to jump to conclusions and she carried on browsing at books. She then felt Botha approach her from behind and touch her thighs. She asked him to stop and she pushed his hands away. He put his hands on her thighs again but this time he went higher and moved her shorts and underwear aside and inserted his finger into her private part. She started crying and asked him to stop. He did stop and she thought it was over.
15. He then pushed her against a desk and pulled down her shorts. Her underwear was still on. He removed his pants and slid her underwear to one side. He then penetrated her. He blocked her mouth every time she screamed. On her third scream, he punched her on her chest. He then touched her breasts and said “you bruise very easily”.
16. She tried everything to get out but couldn’t until his private part slipped out. She used that opportunity to push him away. He then pulled up his pants. She grabbed all her things. He opened the door and let her out.
17. The storeroom was on the second floor. It had windows but people couldn’t see inside. There was no one there when she left. She went to the bathroom before going to the tuckshop to find her friend. She told her friend what happened and then she reported the matter to the school.
18. She is currently not in school. She was not well mentally to return to school after the incident and perhaps will return next year. She still suffers from depression, especially at night. After the assault, she does not know what it feels like to be happy anymore.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. In this matter, I have heard the evidence of the Learner only. She was a credible and reliable witness. She gave a precise account of what had happened and there was absolutely no reason to believe that she was not being honest and truthful. There was also nothing inherently improbable in her version. I accept her version that she was sexually assaulted by Botha.
20. I therefore find that Botha committed the misconduct in terms of Charge 1 and thereby contravened section 17(1)(b) of the Employment of Educators Act. Any misconduct of a sexual nature by an educator on a learner is regarded by the Act as serious misconduct for which dismissal is a mandatory sanction. Having regard to the egregious nature of the sexual misconduct in this case, as emotionally recalled by the learner and having regard to the serious emotional and psychological impact it has had and very likely to continue having on her life for years to come, this is the worst possible form of sexual misconduct that an educator could inflict on a learner.
21. I therefore find that dismissal is an appropriate sanction and that Botha should never be allowed to work with learners and/or children in the future. Educators are employed in a position of trust and work closely with learners. Section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to consider the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of children in general who have the right to be treated with dignity, respect and without emotional and/or physical abuse.
AWARD
22. In the circumstances I make the following award:
22.1. The employee, Werner Botha, contravened section 17(1)(b) of the Employment of Educators Act, 76 of 1998.
22.2. The employer, Department of Education KZN, must immediately impose the sanction of dismissal on Werner Botha in terms of section 17 of the said Act.
22.3. The ELRC General Secretary must forward this award to the Department of Social Development for Werner Botha’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.